State v. O'Brien

• Decision Date: 14 October 1890
• Citation: 46 N.W. 861,81 Iowa 93
• Parties: STATE v. O'BRIEN ET AL.
• Court: Iowa Supreme Court

81 Iowa 93

46 N.W. 861

STATE

v.O'BRIEN ET AL.

Supreme Court of Iowa.

Oct. 14, 1890.

Appeal from district court, Marshall county; S. M. WEAVER, Judge.

The defendants James O'Brien, James Morgan, and John Shay were indicted and convicted of burglary, and now appeal to this court.J. L. Carney, for appellants.

J. Y. Stone, Atty. Gen., and W. W. Miller, Co. Atty., for the State.

BECK, J.

1. The indictment is under Code, § 3894, and is in the following language: “The said James O'Brien, James Morgan, and John Shay, on the 19th day of November, A. D. 1889, in the county aforesaid, did unlawfully, feloniously, and burglariously break and enter a certain store of one W. W. Doolittle, in which goods, wares, and merchandise of said W. W. Doolittle were kept for sale, use, and deposit by the said W. W. Doolittle, with a felonious intent on the part of said James O'Brien, James Morgan, and John Shay then and there feloniously to take, steal, and carry away the said goods, wares, and merchandise of said W. W. Doolittle, then and there to commit a public offense, to-wit, larceny, contrary to and in violation of law.”

2. The evidence shows that defendants entered a store owned by W. W. Doolittle, which was in charge of M. W. Doolittle. O'Brien entered a few moments after the others went in. The person in charge of the store testifies that the door of the store was shut and latched, and that the defendants entered by raising the latch. Defendants all testify that the door was open when they entered. We cannot say that the jury were not justified in basing their finding on the evidence of the person in charge of the store, rather than upon the evidence of the defendants. It is not surprising that the jury would give more weight to his evidence than to the testimony of the three persons shown beyond a doubt to be guilty of a felony.

3. The defendants were together in the store, and while the attendant was showing them, or some of them, goods, Shay took a garment, and concealed it under an overcoat carried on his arm. The attendant discovered the stolen goods, and drew them from the place of concealment, and called for help. Thereupon O'Brien struck him, and, with the other defendants, fled from the store.

4. It is first insisted that the evidence does not show that a burglary was committed, in that the evidence shows that the defendants entered by lifting the latch of the door, which is not a breaking contemplated by the statute. The word “break” used by the statute does not imply the use of any degree of force or violence in order to injure or destroy any part of the building, but the force that is necessary to remove impediments to entering, as the opening of doors. The latch of the door is used to keep the door shut, and exclude entrance. The lifting of the latch removes the impediment designed to prevent an entrance, and is therefore a breaking, within the contemplation of the law. See, in support of these views,...